'A tragedy for the justice system'

Kimberly A.C. WilsonSun Staff

VIRGINIA BEACH, Va. - When sniper suspect John Allen Muhammad demanded the right to represent himself at trial yesterday, he joined a fraternity of pro se capital murder defendants that includes hippie-era cult leader Charles Manson and serial killer Ted Bundy.

Muhammad's entrance into his case added an unexpected twist already being analyzed by legal experts around the country. Within his first moments before the jury, Muhammad made legal and verbal faux pas - his confidently delivered defense remarks, for instance, were peppered with grammatical mistakes.

His self-defense began with a sprawling 22-minute-long opening statement that made no specific references to the sniper shootings, invoked Jesus and Allah, delivered dictionary and Biblical definitions of "truth," and promised jurors "a clean glass of me ... and what really happened on those days."

And when one of his attorneys interrupted to remind him that the purpose of his opening statement was to debunk the state's evidence, the defendant shot a disdainful look in his direction.

Charles L. Hobson, an attorney who has researched dozens of pro se cases around the country for the Criminal Justice Legal Foundation in Sacramento, Calif., predicted the display could put off the panel of 15 jurors and alternates.

"The expert trial practitioners will tell you, many times the outcome of the trial is determined when you finish your opening statements," said Hobson.

A Faretta motion, which is based on a 1975 decision that allowed a defendant to represent himself in a California murder case, "is full of pitfalls," Hobson said.

"When a defendant represents himself, it's kind of like a slow guilty plea. For the jury, you have a decent chance of looking like a crank."

One such case was that of Long Island railroad shooter Colin Ferguson, who killed six people on a commuter train in 1993. "A fellow with problems," as Hobson described him, Ferguson often referred to himself in the third person during courtroom proceedings.

"These defendants are often strange and are much more likely to be convicted if they choose to represent themselves," Hobson said.

Judge LeRoy F. Millette Jr. consigned Muhammad's attorneys - Jonathan Shapiro and Peter D. Greenspun - to assist Muhammad, a former Army sergeant and failed body shop owner who is charged in the killing of Dean H. Meyers, a 53-year-old Vietnam veteran who was gunned down outside a Northern Virginia gas station in October last year.

Some say Muhammad may have weighed his options and made the right decision. Opting to take the reins in a capital murder trial doesn't confirm the adage that a person who represents himself has a fool for a client, said forensic psychologist Douglas Mossman.

"People may have a number of reasons that aren't necessarily foolish or pathological," said Mossman, professor and director of the division of forensic psychiatry at the Wright State University School of Medicine and adjunct professor at the University of Dayton School of Law. Mossman conducted a 2001 study of print media portrayals of pro se criminal defendants that found 79 percent of such defendants were found guilty after trial.

"There were various types of reasons that defendants gave for representing themselves, there was a group of people who seemed eccentric, there were people who seemed to represent themselves for personal reasons, in other words, they expressed the desire to control how their case was presented. There were ideological reasons, like Jack Kevorkian, who wanted to make a case for his idiosyncratic beliefs."

Logistically, granting Muhammad's Faretta motion raises the question of whether he will be granted access to a law library or other resources to aid in his self-defense. Security measures keep Muhammad isolated from other inmates of the Virginia Beach Correctional Center and restrict him from contact with visitors other than his attorneys.

"I know that people get access to law materials anyway but I don't know if he'd have access to more materials than are provided now," said Mike Davy, administrator of Virginia Beach Circuit Court.

Three hours north of Muhammad's trial, terrorism suspect Zacarias Moussaoui is also representing himself in a potential death penalty case in Virginia.

Moussaoui, a French citizen accused of being the "20th hijacker," in connection with the Sept. 11 attacks, took over his defense from a panel of experienced court-appointed attorneys that includes Gerald T. Zerkin, one of Virginia's busiest capital-punishment defense lawyers.

Zerkin, the senior litigator responsible for the defense of federal death penalty cases in the Eastern District of Virginia, said such cases are rare - and potentially tragic.

"It's a tragedy for the justice system because Muhammad is incapable of representing himself, especially in a case that complex," Zerkin said. "What cripples him is that he doesn't know what he's doing. It's enough that he's never tried a case before, he's also never questioned witnesses and he's never talked to a jury and he doesn't know how to manage a trial."

"It's too bad because he had two excellent attorneys representing him," Zerkin added.

One of those attorneys, Shapiro, represented another defendant two years ago in Alexandria Federal Court. In that case, a jury convicted Christopher Andaryl Wills of kidnapping and murder after he took over his defense. Wills later appealed the verdict on the grounds that he was denied his right to self-representation because he was unable to interview defense witnesses before they testified at his trial.

The U.S. Court of Appeals for the Fourth Circuit denied the appeal.

Larry Meyers, brother of the man Muhammad is charged with killing, was stoical about being questioned by a man he regards as his little brother's killer.

"It was unexpected, a little bit surprising, but not out of character," he said after court adjourned for the day. "It's his right so I accept that."